Last week I went to Santa Fe to see the New Mexico Supreme Court oral argument in a case where I had filed an amicus brief. Elane Photography, LLC v. Willock. The case involved a commercial photographer (more precisely her company) who refused to photograph a same sex commitment ceremony on the ground that she and her husband (the other member of the closely held company) were politically and religiously opposed to such ceremonies. The New Mexico Human Rights Commission and the New Mexico Court of Appeals concluded that she had violated the New Mexico Human Rights Act which prohibits discrimination on the basis of sexual orientation. The Commission and the appellate court rejected the argument that the act as applied violated free speech rights or freedom of religion rights.
My brief (on behalf of Mike Dorf and I) argued that the act as applied did not violate free speech rights. We took no position on the religion issue. The five member New Mexico Supreme Court is an impressive court. The justices are smart, quick, concerned, and very well prepared. Judging from the oral argument, it would appear exceedingly unlikely that they would find a free speech violation. On the other hand, it is possible that the photography company could prevail on freedom of religion grounds depending on how the Court interprets and/or applies a New Mexico statute protecting religious liberty. I think the outcome on that front is in some doubt.
One of the side light arguments in the case concerned the standard of review and its application. The company argued that the anti-discrimination interest was not compelling because New Mexico does not take it seriously enough to authorize same sex marriage. I had argued that the compelling governmental interest did not apply in any event. The statute is directed at discriminatory conduct and incidentally hits speech. The government interest is entirely unrelated to the message contained in the potential photographs. The statute applies to commercial carpenters, plumbers, restaurants, hairdressers, and photographers. If a First Amendment test applies, the test should be O’Brien (a somewhat toothless form of intermediate scrutiny), not a compelling state interest test.
It turns out, however, that there is some question whether or not same sex marriage is authorized in New Mexico. Three days ago, the City Attorney of Santa Fe released an opinion for the City Council (here) which argues that the New Mexico marriage law does not specify anything about the gender of the parties and that the New Mexico Constitution would invalidate any gender limitations because it requires equal treatment on the basis of sex. He concludes that same sex marriage is legal in New Mexico and that County Clerks may not refuse licenses to same sex couples. For excellent discussion by Andrew Koppelman, see here.
I doubt that this development will have much impact on the outcome in the Willock case (though it will be interesting to see if the Court refers to the City Attorney’s opinion), but it serves as a reminder that even if the Supreme Court holds this term that same sex marriage is not required under the equal protection clause (as Mike McConnell argues in today’s Wall Street Journal, it is doubtful that there is sufficient standing in the California case to give the Supreme Court jurisdiction to make that ruling), the states will be free to move forward on their own.